Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed HABIB MEHMOOD VS Respondent: Mrs. BILQEES FATIMA
Court Name: Sindh High Court Judge(s): Rana Bhagwan Das Title: Syed HABIB MEHMOOD vs Mrs. BILQEES FATIMA Case No.: Suit No. 444 of 1989 Date of Judgment:1996-08-08 Reported As: 1997 MLD 390 Result: Suit dismissed
JUDGMENT
JUDGMENT By this suit the plaintiff seeks a declaration against the defendant that he is real and true owner of the Plot No. 349, Block 7 and 8, C.P. And Berar Cooperative Housing Society with a double-storeyed bungalow thereon and that the defendant is only a benami owner. He has also asked for an injunction restraining the defendant from denying his title and ownership and from preventing him from exercising his right and dominion over the property. By way of consequential relief, he has prayed for handing over vacant possession alongwith all title deeds and documents in respect of the ground floor of the property in suit and delivery of first floor by way of token possession it being in occupation of a tenant. 2. Plaintiff was married to the defendant some times in 1956 at Hyderabad Deccan and brought her to Karachi. From his savings he purchased a plot measuring about 183 sq. Yards in Bahadurabad and built a double-storeyed house thereon in 1958 and started living there with the defendant and a daughter. According to the plaintiff till 1965 defendant was a house wife when she took up her employment with the House Building Finance Corporation, as a clerk at Rs.250 p.m. In 1967 plaintiff sold out his house in Bahadurabad for Rs.60,000 and added to it his other savings, purchased the plot in suit measuring about 487 sq. Yds in the name of the defendant and built thereon a double- storeyed house. As there was mutual trust and harmony between the parties, the plaintiff placed all title documents and papers in custody of the defendant and started living in the ground floor of the property in suit. Some times in 1978 relations between the parties became strained consequently the plaintiff contracted a second marriage with Mst. Amina and took her to the house in suit and started living there. The plaintiff was blessed with a female baby Qurratul-ain from the second wife where the parties as well as second wife and newly-born baby lived up to October,
---
## Page 2
1980 In October, 1980 plaintiff purchased flat No. D-1, Haq Bahu Plaza, Gulshan-e-Iqbal for Rs.1 ,54,000 in the name of his second wife as benami for himself and he alongwith the second wife and daughter shifted to the said flat where he was blessed with another female baby. Later the plaintiff desired to shift to the property in suit for his comfort and better environment but the defendant declined to honour his desire and asserted her title to the property as exclusive owner thereof, hence this suit. 3. Defendant resisted the suit and filed written statement stating therein that she herself had purchased the plot in suit and raised construction thereon after obtaining House Building loan against the guarantee of her income and that she joined Happy Home English School in 1960 as a teacher. Prior to that she had been imparting private tuition to students and earning handsome amount. In 1965 she joined House Building Finance Corporation and rose to a position in National Pay Scale No. 20. It was denied that the property was purchased by the plaintiff from his own resources or in the name of defendant as a benami owner. She has given details showing as to how she acquired funds for the purchase of the plot and raising double storey construction thereon. She raised legal pleas as well. 4. On the pleadings of the parties following issues were settled: (1) Whether the suit property was purchased by the plaintiff from his own funds in the name of the defendant? (2) Whether the defendant had means and source oft income to purchase the property? (3) Whether the defendant is benami owner of the suit property? (4) Whether the suit is misconceived, bad in law, fabricated and without cause of action? (5) What should the decree be? 5. In support of his case the plaintiff besides examining himself led the evidence of Badruddin Paracha working in Habib Bank Limited, Saddar Branch, Karachi while the defendant examined herself and her daughter Mst. Sajjida Habib. While the evidence of Bank Officer was recorded in Court, remaining evidence of the parties was recorded on commission by Mr. Zahiruddin Khan, Advocate appointed as Commissioner. 6. I have heard learned counsel for the parties and gone through the relevant evidence on record. My findings are as under for the following` reasons: REASONS Issues Nos. 1 to 3. 7. These issues being interconnected and inter-related may be discussed and decided together for the sake of convenience and to avoid repetition of evidence and reasoning thereon. It is settled proposition of law that in a suit for declaration of title and right to property as real owner claiming it to be benami transaction, initial burden of proof is on the party who alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof shifts from a plaintiff on a defendant and if he fails to discharge the burden of proof, the plaintiff shall succeed. (Refer Muhammad Sajjad Hussain v. Muhammad Anwar Hussain, 1991 SCMR 703). 8. There appears to' be no serious controversy with regard to purchase of Plot No. 253 measuring 183 sq. Yds. In Bahadurabad by the plaintiff from his own resources as well as house building loan and sale thereof for a consideration of Rs.60,000 by way of a registered conveyance deed, dated 22nd January, 1968 Exh. 6/13. The whole controversy in the suit relates to the title and ownership in respect of Plot No. 349 measuring 487 sq. Yds. In C.P. And Berar Cooperative Housing Society Limited. While the case of the plaintiff is that in or about 1967-68 he purchased the plot in suit in these name of defendant as benami and built thereon a double-storeyed house from his own resources, the stand of the defendant/wife is that she herself being a working lady purchased the
---
## Page 3
plot it suit and raised construction thereon from her own resources as well as by raising loan from the House Building Finance Corporation in the first instance and subsequently from Eastern Federal Union Insurance Company Limited. According to the plaintiff he served in the following organizations at different times: (1) Lever Brothers Limited from Ist October, 1951 to Ist June, 1954. Salary Rs.80 p.m. (2) TheSwissboring Overseas Corporation Ltd. From June, 1954 to May. 1962. Salary Rs.600 p.m. (3) Philips Electrical Co. Limited up to 26th November, 1962. (4) Standard Bank Limited from 26 November, 1962 to 1st August, 1964. Salary Rs.325 p.m. (5)Swissboring Overseas Corporation Ltd. From 14th January, 1965 to 26th April, 1965. Salary Rs.600 p.m. (6) Gandhara Industries Ltd. From Ist February, 1966 to 13th December, 1966. SalaryRs.138 p.m. Plus dearness allowance and transport equilization. (7) Hotel Midway House from December, 1966 to October, 1976. Salary Rs.115 p.m. (8) Saudi Arabian Airlines from November, 1976 to 18th April, 1988. 9. With regard to the purchase of the house in suit contention of ~ the plaintiff is that he purchased the same from Mst. Zainab Bai for a consideration of Rs.19,400 paid by him through cheque No. 813761, dated 10-3-1967 drawn on Habib Bank Limited, Saddar Branch, Karachi. It is further his case that after the purchase of the plot he paid admission and transfer fees amounting to Rs.2,440 to C.P, and Berar Cooperative Housing Society vide Cheque No.813762, dated 11-3-1967. He further paid a sum of Rs.10 to the said Society towards execution of sub-licence fees and Rs.600 to S.M. Ilyas, Estate Broker through Cheque No. 813764, dated 13-3-1967. In support of his statement plaintiff led the evidence of Shaikh Badruddin, an Officer of Habib Bank Limited who produced four cheques issued by the plaintiff for Rs.19,400, Rs.2,440, Rs.312.38 and Rs.600, Exhs.5/1 to 5/4 respectively, photocopy of statement of Bank account from January, 1967 to 27th November, 1967 Exh.5/5 tending to show that the aforesaid cheques were duly passed for payment and debited to the account of the plaintiff. From the evidence of the Bank Officer as well as the plaintiff himself it transpires that amount of cheque for Rs.19,400 was collected by the plaintiff himself, the cheque for Rs.600 being a bearer cheque seems to have been encashed by S.M. Ilyas whereas two remaining cheques were cleared by way of transfer by C.P. And Berar Cooperative Housing Society Ltd. And House Building Finance Corporation respectively. The plaintiff also produced two receipts issued by C.P. And Berar Cooperative Housing Society acknowledging the receipt of Rs.2,440 and Rs.10 respectively both in the name of the defendant reflecting the payment towards admission-cum--- transfer fee and execution of sub-licence No.2 fee respectively. 10. It may be observed that the plaintiff did not examine the so-called vendor Zainab Bai nor did he produce any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration of Rs.19,400 from him as claimed. According to the plaintiff during the construction of a double-storeyed house on the plot in suit he found that amount received by him from sale of Bahadurabad House and House Building Finance Corporation was not sufficient for completion of construction, therefore he obtained a loan of Rs.55,000 from Eastern Federal Union Insurance Company after redeeming the property from House Building Finance Corporation. He asserted that he repaid the loan amount to House Building Finance Corporation whereafter the property in suit was mortgaged with Eastern Federal Union Insurance Company and he spent this amount on the construction. Surprisingly no receipt for repayment of House Building Finance Corporation loan was produced by him as asserted. Besidesth
---
## Page 4
no evidence with regard to redeeming the property from House Building Finance Corporation and mortgaging it with Eastern Federal Union Insurance Company by, him was adduced. In December, 1967 on completion of the construction he alongwith his wife shifted in the ground floor and let out the first floor of the building on rent of Rs.600 per month. According to the agreement of sale in respect of the Bahadurabad House he received Rs.30,000 as earnest money on 1-3-1967, Rs.6,000 on 12-7-1967 as well as Rs.4,000 both by way of crossed cheque, dated 3-10-1967 and Rs.2,926 in cash on 22-1-1968 when the conveyance deed was executed by him in favour of the vendee. In support of this submission, the plaintiff relied upon entries in the Bank Statement of Account Exh.5/5 reflecting the credit of Rs.30,000, Rs.6,000 and Rs.4000 in his account soon after the aforesaid dates. 11. As regards the defendant's capacity to purchase the plot in suit and raising construction thereon from her own resources, the plaintiff asserted that in fact she did not have any funds because she used to spend her school salary on buying clothing, cosmetics and other items of fashion for herself. He maintained that he had full faith and trust in the defendant, therefore, he purchased the plot in her name as benami for himself and all the documents and transactions were drawn and made in her name. He also placed all the documents and papers pertaining to the purchase of the plot in her custody. He however admitted that the defendant joined service with Happy Home English School in June, 1960 as a teacher with a salary of Rs.250 per month and urged that while she was in the school employment he continued to provide all her maintenance and the funds for the maintenance of the family as well as the house as he was earning sufficient funds from his service with Swiss boring drawing a salary of Rs.600 per month and was also able to make sufficient savings out of his service income as well as rent received by him for the ground floor premises of Bahadurabad House. In his cross-examination quite inconsistent with his earlier affirmation he was obliged to admit that he kept his personal papers in his possession and in safe custody. On being confronted with his loan application, dated 7-6-1957 Exh.6/19 he admitted that it indicated that the defendant had a monthly income of Rs.200. While admitting another loan application No.6965, dated 26-5-1964 Exh.6/20 he conceded that the defendant was earning Rs.260 p.m. As shown in column No.5(b). It may be pointed out here that in 1964 he himself being employed in Standard Bank Limited was receiving Rs.325 p.m. By way of salary. Subsequently he joined Gandhara Industries Limited in 1966 at a salary of Rs.138 p.m. And in 1967 he was serving in Hotel Midway House for a salary of Rs.115 in addition to usual allowances. He reluctantly admitted that in 1965 the defendant obtained an employment in House Building Finance Corporation but dishonestly avoided to accept whether she was still employed with the said Corporation. However he was constrained to admit that the defendant mortgaged the plot in suit with the House Building Finance Corporation and obtained the loan. He expressed that he was unable to produce any receipt for payment of amount of Rs.19,400 to the vendor. He owned and admitted the contents of para. 13 of his affidavit-in-evidence stating that when he purchased the plot in suit as a loving husband he had full faith and trust in the defendant, therefore, he purchased the plot in her name as benami, that all the documents and transactions were drawn and made in her name and that he had placed all the documents and papers relating to purchase of the plot in her custody. He denied the suggestion that the defendant had purchased the plot in suit for Rs.8,000 or paid a further sum of Rs.3,165 towards miscellaneous charges to the society though he did not dispute the acknowledgement receipt Exh.6/22. Quite inconsistent with his earlier admission he denied the suggestion that all the documents and receipts were in possession of the defendant and asserted that ` these were in his possession. According to the plaintiff there was no other loan except the House Building Finance Corporation loan and the Eastern Federal Union Insurance Company loan which is not correct on the face of it. He conceded that he did not possess sanction letter for the
---
## Page 5
Eastern Federal Union Insurance Company loan and the redemption deed redeeming the property in suit from the said company. 12. In para. 15 of his affidavit on evidence, he wrongly claimed that he had started construction in March, 1967 but in his cross-examination on being confronted with the approved building plan Exh.6/25 he admitted that the, building plan was approved on 29-4-1967. He did not dispute defendant's letter, dated 15-3-1979 Exh.6/28 addressed to the House Building Finance Corporation enclosing therewith original sub-lease, dated 3rd May, 1967, permission to mortgage, valuation certificate and the approved building plan. He conceded that defendant had been living in the house in suit since it was built, that she has been earning since 1960 and that she has been working in House Building Finance Corporation since 1965. He however wrongly and cleverly denied the suggestion that she had sufficient funds before and after the purchase of the plot in suit. 13. On her part defendant Bilqees Fatima in her evidence explained that when she was brought to Karachi after her marriage the plaintiff was living in rented house No. 278 at Hyderabad Colony. At the relevant time Miss Kauser Sultana aged about 25 years and not married or otherwise related to the plaintiff was being kept by him right from the first day on her arrival at Karachi. After marriage with the plaintiff relations and events took place in a manner that the confidence and understanding between the parties could never improve. She stated that the plaintiff being a person of suspicious character and conduct was never able to maintain her in a proper manner. She affirmed that she being a graduate in English Literature immediately after her arrival in Karachi in 1956-57, started earning and maintaining herself and incurred the expenditure of the family as the plaintiff was in and out of job many a times. In the year 1956-57 she started imparting tuitions, in 1959 she joined Peter Pan English School and in the year 1960 she got an employment in Happy Home English School. She produced office order, dated 20-6-1960 and a certificate, dated 26-11- 1965 from Happy Home English School Exh.7/3 and Exh.7/10 respectively. She produced two certificates in support of her statement with regard to imparting tuitions Exh.7/1 and 7/2 which were not controverted in evidence. 14. She further asserted that on her arrival in Karachi since she started working and earning, Plot No.253 measuring 183 sq. Yds. In Bahadurabad was purchased in 1958 by the plaintiff from her savings and from money given by his father. According to her, the house was constructed with the assistance of House Building Finance Corporation loan which was made available on her guarantee. Ground floor construction on the plot was raised in the year 1958 whereafter- she herself and the plaintiff shifted in the said house. She added that in 1964 with the aid of her income and House Building Finance Corporation loan obtained on her guarantee first floor of the said house was constructed. I would, however, refrain from giving much weight to this place of evidence which is beyond the pale of controversy and not the subject-matter of issues for decision. On her own showing she was employed with House Building Finance Corporation on permanent basis in 1965 and she continued to be in the employment of the said Corporation. She produced initial order of her appointment as Assistant at Rs.240 per month, dated 3/4-8-1965 and a certificate dated 25-2-1990 certifying that she joined the said Corporation on 5-8-1965 and was now holding the post of Executive Director (Operations) equivalent to BPS-20. 15. Adverting to the purchase of the property in suit it is her case that in the year 1967 she had sufficient funds and means therefore she decided to purchase the plot in suit from its owner and purchased it for a consideration of Rs.8,000. She produced acknowledgement receipt to this effect, dated 10-3-1967 Exh.6/22 purportedly executed by Mst. Khairunnisa (as stated at the Bar by learned counsel for the defendant since the signature of the vendor on the receipt is in Gujrati). She claimed that she being an employee of House Building Finance Corporation, was entitled to certain benefits including the benefit of availing loan without initial investment. Accordingly she sought permission to mortgage the plot in suit with the Corporation which was accorded by C.P. And Berar
---
## Page 6
Cooperative Housing Society Ltd. Exh.6/24. Before the grant of such permission, the aforesaid Society executed a sub-licence No. 2 in Form "A" in her name Exh.7/15 after the clearance of all dues payable by her which was registered in the Office of District Registrar, Karachi vide S. No. 2468 on 7- 4-1967. The certificate granting permission to mortgage issued by the said Society further affirmed that the defendant had paid the dues to respect of the plot in suit on account of development and Government premium amounting to Rs.3,165.50 and there was nothing outstanding against her. After the lease in her favour she engaged an architect for preparation of building plan which was approved by K.D.A. Vide letter dated 29-4-1967 Exh.6/25. Thereafter she obtained loan from House Building Finance Corporation in the sum of Rs.40,000 vide sanction letter, dated 6th May, 1967 Exh.7/16. Before the availment of the House Building Finance Corporation loan she mortgaged the plot in suit with House Building Finance Corporation vide registered mortgage deed Exh.7/17 registered in the Office of Sub-Registrar on 17-6-1967. Subsequently she redeemed the property in suit from House Building Finance Corporation on 4th March, 1968 Exh.7/18 and obtained a loan of Rs.55,000 from Eastern Federal Union insurance Company vide mortgage deed, dated 4th August, 1968. After the repayment of this loan the property was redeemed from State Life Insurance Corporation which succeeded Eastern Federal Union Insurance Company Ltd. Vide Exh.7/20, dated 9th December, 1980 whereafter the property was again mortgaged with House Building Finance Corporation for availing additional loan of Rs.35,000 vide mortgage deed Exh.7/21. Besides she availed of over-draft facility from National Bank of Pakistan in the sum of Rs.5,000 vide letter, dated 21st October, 1967 Exh.7/23, over-draft limit of Rs.2,000 vide letter, dated 8-2-1969 Exh.7/23/1, overdraft limit of Rs.1,800 vide letter, dated 5-1-1970 Exh.7/23/2. The defendant also produced as many as 56 receipts for repayment of instalments to State Life Insurance Corporation in order to prove the repayment of loan amount to Eastern Federal Union Insurance Company Ltd. Being predecessor in interest of State Life Insurance Corporation. Besides aforesaid oral as well as documentary evidence, her version is materially corroborated by the testimony of her daughter D.W. Sajjida Habib which has not been impeached. 16. Onus of proof of issues Nos.1 and 3 being on the plaintiff, he utterly failed to discharge the same. His assertion that he purchased the plot in suit for a consideration of Rs.19,400 from Mst. Zainab Bai and paid the consideration through cheque Exh.5/1 is not supported by the evidence on record. In the first instance there is no evidence showing Mst. Zainab Bai to be the owner of the plot in the records of C.P. Berar Cooperative Housing Society Ltd., secondly there is no agreement of sale between her and the plaintiff reflecting the transaction of purchase of plot in the name of the defendant; thirdly there is no evidence of passing of consideration to the said owner of the plot. Admittedly cheque for Rs.19,400 drawn on 10-3-1967 is a self-drawn cheque and the amount thereof was received by the plaintiff himself which does not by am, stretch of reasoning establish the payment of consideration by the plaintiff to the so-called owner of the plot. Only circumstantial evidence produced by the plaintiff is the production of two receipts for payment of Rs.2.440 and Rs.10 to C.P. And Berar Cooperative Housing Society in the name of the defendant on account of admission-cum-transfer fee as well as execution of sub licence No.2 fee. While the first payment was made through a cheque and there is evidence to show that the said cheque was received by the plaintiff's Bank for clearance, paltry amount of Rs.10 was paid in cash. In this context the explanation of the defendant is that in fact she being a working woman had paid this amount in cash to the plaintiff for payment to the Society in so much so that she had purchased the plot in suit for a sum of Rs.8,000. In order to substantiate this statement she produced a receipt purportedly executed by Mst. Khairunnisa Exh.6/22 followed by the aforesaid payments to C.P. And Berar Cooperative Housing Society Ltd. It may further be observed that according to the plaintiff construction on the plot was completed in December, 1967 and finances therefore were provided by him though the title documents remained intact in the name of defendant. It may however be
---
## Page 7
observed that at the relevant period he being employed in Gandhara Industries Limited for a salary of Rs.138 per month plus dearness allowance and transport equalization and subsequently in Hotel Midway House for a salary of Rs.115 he could hardly save any substantial amount for the purchase of plot or raising construction thereon with a huge investment. No doubt he stated that on account of sale of Bahadurabad House he had received a sum of Rs.30,000 as advance money from the vendor on 1-3-1967 which was credited to his bank account, he failed to show by any concrete and satisfactory evidence that in fact the lay-out plan as well as the building plan were approved by concerned agencies at his instance or that the actual construction was carried out under his supervision and from his investments. Admittedly he had obtained a loan for raising construction on the plot in Bahadurabad therefore he was under a legal duty to repay the said loan. It is therefore, difficult to accept that with the receipt of advance money he was able to invest the said amount in the purchase of plot or to raise construction thereon. Mere production of a receipt for payment of Rs.2,440 to C.P. And Berar Cooperative Housing Society in the name of the defendant on his part in my view is neither sufficient nor satisfactory evidence of his investment in the purchase of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.